The Death of Common Sense

                                                      By Keith Swift, PhD

Several years ago, in California, a veteran inspector was dragged into a lawsuit over a pool that didn’t exist at the time of his inspection. Many inspectors chuckled about it, but it wasn’t funny. It cost him over five thousand dollars in attorney’s fees to get out of the lawsuit, and yet if the plaintiff’s attorney had any respect for truth and justice, and had used just a little bit of common sense, all he would have had to do was compare two dates and an innocent man would not have stood accused. You might think that this was an isolated case, but common sense seems to be absent in almost all of the cases that I’ve become familiar with in the last several years. In fact, I was sued over something that was specifically disclaimed in my report, and by persons who were not even my clients. How can this be possible? Well, as you might have guessed, it has to do with the law and such legal mumbo-jumbo as “equitable indemnity,” which guarantees that innocent inspectors will be dragged into endless lawsuits. And it seems that there’s nothing we can do about it; it’s the law and a virtual gold mine for unscrupulous attorneys.

I’m telling you this in order to warn you that you can no longer depend upon the law or your common sense to shield you from a lawsuit. However, to understand how vulnerable you are, you really need to understand how insidious the application of law has become. I was lucky enough to come across a brilliant book, written by New York attorney Philip K. Howard, called The Death of Common Sense (Warner Books, 1994), in which he explains that we have all but abandoned the standards of the “common law,” and replaced it with “a system of regulatory law that basically outlaws common sense” (p.11). “Law was always the pride of our country,” he affirms. “Yet, increasingly, law makes us feel like its victims” (p.48). How could this have happened to us in a country in which we celebrate our freedoms?

It all began when we started to abandon the application of “common law,” the law that allowed for common sense, in the mistaken notion that all “rights” can be somehow legislated. Howard explains it this way: “Application of the common law always depends on the circumstances: the accident caused by swerving to avoid the child is excusable; falling asleep at the wheel is not. The most important standard is what a reasonable person would have done” (p.23). But don’t look for that commonsense standard of justice today. Philip K. Howard’s remarkable expose confirms what many of us inspectors are rapidly coming to understand: “Modern law has not protected us from stupidity and caprice, but has made stupidity and caprice dominant features of our society” (p.185). Furthermore, our insurance companies are simply rolling over and paying, and although this may make economic sense, it serves to encourage litigation, and make a mockery of justice.

Rest assured that it has certainly never been my intent to seek out bizarre lawsuits that denigrate the legal profession or report on those that confound common sense; such lawsuits have simply become the norm in our industry. Inspectors have been sued over pools that didn’t exist, over roof leaks that occurred three years after the inspection, over mold that appeared in a crawlspace that a subsequent termite report had confirmed was clean, over rodent droppings in an attic that had been specifically identified in a report, over air that was allegedly contaminated by the dust and rust in a furnace that an inspector reported needed to be cleaned, and by a person dumb enough to dive into the shallow end of a pool from the top of a water slide. And, as I’ve already stated, I’ve been sued over something that was specifically disclaimed in my standards and by persons who are not even my clients. It confounds common sense, makes us all hapless victims of the law, and threatens our livelihoods as inspectors.

Everyone that I’ve told about my case seemed dumfounded. One or two people thought that I was making it up, or perhaps not telling the whole truth, but most literally shook their heads in silent amazement. Naturally, I turned the case over to my insurance company, a file was opened, and I paid my deductible. Thus began a process of perfectly legal extortion. Shortly thereafter, I received four “form” letters from my defense team, all dated on the same day, reminding me about the limitations of my coverage, and warning me of the possibility that my “personal assets could be looked upon to satisfy any judgment or verdict.” I understand that it’s their duty to apprise me of my rights and can even understand their use of a bland euphemism like “looked upon” to describe another potential threat to my livelihood, but I was hoping for a more personal touch, hoping that someone on my defense team might feel outraged about an obviously bogus case and corrupted legal system and offer me some words of comfort, some ray of hope. However, it did force me to “look upon” my modest home and vintage English sports car in a very different light; not as extensions of myself and of my family but as “personal assets” that someone could seize in the name of the law. Resigned to my fate, I spent the rest of the day humming: “Ain’t that America home of the free baby,” an old song by John Couger Mellancamp. You might be wondering what happened with the lawsuit, so let me tell you. It was settled for economic reasons, more money found its way into the pockets of decadent people, and my life went on much as it had before. But, I ask you, is that justice in the land of the free?